SHRIMATI BUDHNI MAHOTAIN AND ANOTHER Vs. GOBARDHAN AND BHOGTA ALIAS GOBRA AND OTHERS

JUDGEMENT

(1.) This second appeal is by defendant Nos. 2 to 5, directed against the concurrent judgment of the courts below declaring void and inoperative he sale deed dated 12.9.1958, Ext. 8, through which they acquired the Scheduled properties from defendant No. 1, in a suit instituted by the plaintiff -respondents seeking declaration that the purported sale deed is violative of Sec. 46 Proviso (b) of the Chotanagpur Tenancy Act (hereinafter referred to at 'the Act') and recovery of possession after eviction of the appellants. Both the courts below held that the defendant -appellants are in illegal possession of the Scheduled properties by virtue of void and inoperative sales executed by defendant No. 1 in favour of defendant Nos. 2 and 3, inasmuch as, even though the vendor and the vendee are members of the Scheduled caste, the transfer has been effected without the previous sanction of the Deputy Commissioner in violation of the provisions of Sec. 46 of the Act. The courts below after having so held, decreed the suit of the plaintiffs seeking recovery of possession after evicting the defendant -appellants, from the suit laid. The courts below directed that the plaintiffs be treated as joint owner of the suit plots with defendant No. 1 and remain in joint possession of the disputed plots with defendant No. 1.

(2.) Since decision of this case turns round on a pure question of law, it is not at all necessary to set out in detail the respective cases of the parties. Suffice it to say, admittedly all the defendants are members of the scheduled castes. It is also not in dispute that the defendant -appellants in pursuant to their purchases are in possession of the disputed plots. The said transfer is of the year 1958. Both the courts have found that defendant No. 1 is not an imposter and the plaintiffs are the agnates of defendant No. 1. These are the necessary facts to be borne in mind for the decision of the legal question involved in this suit.

(3.) Mr. Kameshwar Prasad, learned counsel appearing for the defendant -appellants contended that the sale deed, Ext. 8, dated 12.9.1958 is not void and inoperative inasmuch as Sec. 46 proviso (b) of the Act, is violative of Article 19(1)(f) of the Constitution of India. In short, he contended that parties being members of scheduled castes, any transfer of land by sale, exchange, gift, will or lease by them in the year 1958 cannot be restricted by Sec. 46 of the Act, by any Act of Parliament or Legislature in view of Article 19(5) of the Constitution of India, as it stood prior to the Constitution (44th Amendment) Act 1978, inasmuch as operation of any existing law imposing reasonable restriction to the exercise of freedom engrafted under Article 19(f) can be confined to scheduled tribes only.